Is There Any Way to Fix Legislative Oversight of Intelligence Operations?

In his new book, Eric Lichtblau accuses Rep. Jane Harman of having supported the NSA wiretapping program until it was revealed, and then hypocritically opposing it thereafter.  In defense, Harman gives this story , which sounds plausible:

1.  She and seven other members of Congress were told the basic outlines of the program. 

2.  They were instructed that they could not tell anyone else – including their staffs and other members of Congress.

3.  They were assured by the Administration that the program “complied with the law and that the senior-most officials inthe Justice Department conducted a full legal review every 45-60 days.”

4.  “The Gang of Eight was not told – nor did it occur to me – that theAdministration was violating FISA, despite Congress’ clear legislativeintent when FISA was passed that it was the ‘exclusive means’ formonitoring the communications of Americans connected to foreignintelligence.” 

5.  When the New York Times broke the story, Harman “was finally free to consult constitutional experts on the legal issuesit raised. My call to a former CIA general counsel that Saturdayprovided the first inkling that the program was in not compliance withFISA but was conducted pursuant to claims of ‘inherent’ executivepower. To this day, I have not been shown the memoranda produced by theOffice of Legal Counsel to support the basis for the program!

6.  Once she learned that the program was a violation of FISA, she opposed it.

This is basically the exact, same sequence of events that occurred when Harman learned of the CIA interrogation program :  The problem is systemic.  (Really, the parallels are uncanny.  Go back and read that post.)

Actually, there are at least two very basic, huge problems here:

First, Harman and the other seven members of the Gang of Eight themselves are not only far, far too cozy with the intelligence community they are overseeing, and far too credulous of what they are told (even after repeated incidents such as this one), but, more to the point, they know far, far less about the law they are overseeing than do the officials in the Executive branch who are implementing those laws.  As soon as the NSA program was publicly revealed, literally hundreds (if not more) lawyers and others realized that its legality was highly questionable – and we all presumably had far less knowledge of the details than Harman did.  But for some reason, it did not even occur to Harman that the program described to her might be legally tenuous.  She took DOJ’s word for it.

Second, and more importantly, even if Harman had had doubts about the legality of the program, what could she have done about it?  She couldn’t speak to her staff, to her colleagues, or to anyone else well-versed in FISA or the law generally.  If she had insisted on seeing the OLC memoranda – which she certainly should have done – what could she have done when the Administration refused to provide them (as it has continued to do to this day)?   If she had told her staff and colleagues, the Administration would have ceased to brief her on classified matters (notwithstanding that that would be unlawful) – and then the whole point of the oversight enterprise would have been defeated.

As I’ve previously written , t he pattern is by now very familiar.

Continue reading at Balkinization . .